- (1.) GIRDHARI Lal, J. This second appeal has been filed against the order of the learned Additional Commissioner dated 1-10- 95 by which the learned Additional Commissioner has allowed the first appeal filed by Mansoor Ali and others preferred against the order of the learned trial Court dated 26-7-88.
(2.) BRIEF facts of this case is that Mansoor Ali and others has filed a suit under Section 229-B of the U. P. Z. A. and L. R. Act. Plaintiff respondent has given a pedigree which is given as below: It has been stated in the plaint that plaintiff's ancestor was Alloo Shah before the time of the second settlement. The disputed land of village Karaundiya, village Harihar Ishapur and village Pyagpatti has come in the possession of his ancestors on the basis of succession. It has also been stated in the plaint that the land of village Harihar Ishapur was entered in the name of both the parties during consolidation operation. The land of village Karaundiya, and village Pyagpatti is the acquisition of Alloo Shah which has been devolved to his heirs and all the persons in the pedigree given in the plaint are in possession of the disputed land. It has also been stated that after the death of Alloo Shah the disputed land was wrongly entered in the name of Altaf Husain and Syed Ali. All the plaintiffs and defendants are co-bhumidhars of the disputed land. The suit was dismissed by the trial Court on 31-3-1984. First appeal was filed by Mansoor Ali and others which was allowed on 7-5-85 and the suit was remanded back to the trial Court with certain observations. After remand the suit was finally dismissed by the trial Court on 26-7-88 mainly on the ground that the disputed land was not acquired by Alloo Shah and plaintiffs have failed to prove that they belong to the branch of Alloo Shah. The learned Additional Commissioner vide his order dated 1-10-95 has allowed the first appeal filed by Mansoor Ali and others. Being aggrieved by this order this second appeal has been filed before the Board of Revenue by Sultan Ali and others. Heard the learned Counsel for the parties and perused the original file. Appellant has framed the following substantial question of law : (a) Whether the appellate Court is justified in reversing the judgment of trial Court without upsetting the each and every finding of the trial Court? (b) Whether the appellate Court can reverse the order of the trial Court without discussing/considering any evidence on record? (c) Whether the appellate Court is justified in carving out a new case in respect of possession in favour of the plaintiff respondent whereas there was no pleading to that effect from either side nor any issue has been framed to this effect?
(3.) IT has been argued by the learned Counsel for the appellant that the disputed land was the sole acquisition of Altaf Husain, Syed Ali and Sultan Ali. IT has also been pointed out that in the third settlement the disputed land is recorded in the name of Altaf Husain and Syed Ali. In 1356-F the disputed land is recorded in the name of Altaf Husain. The appellant has also raised a contention that the plaintiffs are not the son of Hasan Raza and they do not belong to the branch of Alloo Shah. IT has also been pointed out that the suit is barred by Section 34 (5) of the U. P. Land Revenue Act. IT has been pointed out that the learned appellate Court has wrongly decided on the basis of presumption that the respondents ancestor was Alloo Shah. IT has also been pointed out that the rent receipts relates to the disputed land. IT has also been pointed out that only possession could not cover right and title. Only on the basis of adverse possession right can be claimed. It has been argued by the learned Counsel for the opposite party that in the village Pyagpur consolidation operation is going on therefore proceeding related to village Pyagpur will abate. It has also been pointed out that Qurban Ali and Nazar Ali who were parties before the trial Court have not been made parties in this case. Mainly it has been argued that due to non-joinder of parties the appeal is not maintainable. It has also been argued that after considering the evidence which were not considered by the trial Court and learned Additional Commissioner has held that on the basis of the evidence which are on record from Serial Nos. 222 to 271 possession of the respondents is proved. It has also been stated by the learned Counsel for the opposite parties that the disputed land was acquired by Alloo Shah.;